TOPEKA — Civil rights advocates argued in court this week that drivers’ licenses should not lead to “forced outing,” leaving a district judge to decide how a divisive law will impact the day-to-day lives of transgender Kansans.

Republican Attorney General Kris Kobach asked Shawnee County District Judge Theresa Watson to grant a temporary injunction blocking Kansas residents from changing the gender listed on their drivers’ licenses while courts decide the implications of an anti-transgender law passed last year.

“This case is really about the question of whether an agency follows the clear command of Kansas law or does not,” Kobach said in an interview after Thursday’s hearing. “… And they’re using this case as an opportunity to try to invent these new rights. That’s what’s going on in legal speak.”

Watson heard arguments Wednesday and Thursday regarding the implementation of Senate Bill 180, which took effect in July. The legislation conflates sex, which has to do with biological characteristics, with gender, which is a personal and social identity. Under the law, women are defined by their reproductive ability, and state agencies that collect vital statistics are directed to identify individuals “as either male or female at birth.”

The hearings, which coincided with the opening of the legislative session, mark the latest turn in an ongoing legal battle over transgender rights.

During the hearings, Sharon Brett, legal director for the American Civil Liberties Union of Kansas, and Kansas Department of Revenue general counsel Ted Smith emphasized the idea of driver’s licenses as a form of self expression, rather than a vital statistic.

“In a big sense, it’s an expression of someone’s identity,” Smith said in court.

They made an appeal to perspective and empathy, focusing on the danger of outing transgender residents by having a gender marker that does not match their identity, as well as the negative mental health consequences suffered by removing this source of affirmation.

As the hearing wrapped up, Watson said her opinion could be delayed because of factors such as ongoing court construction — the sounds of which could be heard periodically as people testified — but she assured the parties she “would be working quite a bit on this in the future.”

The legal fight

The GOP-dominated Legislature adopted SB 180 last year by overriding Gov. Laura Kelly’s veto.

The model legislation comes from Independent Women’s Voices, a far-right group that has a long history of opposing women’s rights, including the Equal Rights Amendment and equal pay. The law’s sex-based definition of women, and classification of those who don’t qualify as men or women as disabled, is considered offensive and not based on science.

Kobach, in his capacity as the top legal officer in the state, filed a lawsuit against the Kansas Department of Revenue’s Division of Vehicles in early July, seeking to ban transgender people from changing gender markers on their driver’s licenses.

In response, the district court issued a temporary restraining order blocking Kelly’s administration from making gender marker changes on identity cards and driver’s licenses.

The court granted the ACLU of Kansas permission to intervene in the lawsuit on behalf of five transgender Kansans who would be harmed by the gender marker ban.

For now, the extended restraining order does not invalidate current driver’s licenses. However, new, replaced or renewed credentials will be reverted to sex assigned at birth.

When asked about gender markers Thursday, the governor said: “I’m going to let the courts sort that out.”

Impact of the law

Rooks County physician Beth Oller, who has treated an estimated 100 transgender patients, spoke to the judge about the “great harm” suffered by those who are blocked from gender affirmation, such as increased anxiety, depression and social isolation.

A physician’s letter is required to change license markers in the state. Oller has written an estimated 40 letters recommending gender marker changes and described the “profound sense of relief” she witnessed when they had the markers changed.

Transgender residents also took the stand Thursday to testify on their personal experiences, though portions of the meeting were closed to the public to protect several of the intervenors’ anonymity. One of the interveners in the case, a transgender woman living in Lawrence, teared up while speaking of incidents before she got her license marker changed.

She mentioned a cashier at a gas station who told her to leave after he looked at her driver’s license and saw the “M,” as well as the “abject hate” in one man’s eyes when she was showing her card to make a purchase.

She then described the feeling of safety she received from having her marker changed. If the ban on gender markers is permanent, she said, staying in the state would no longer be a viable option.

“I would feel like I’m being kicked out of the state over something I have no control over,” she said.